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Insights
13/10/2023
It is unfortunate that in the 18 months since Part 1 of this series, the law surrounding e-scooters has seen little development. This part of the series will consider the following:
Before delving into the potential issues that might arise in claims involving e-scooter users, it is helpful to address the impact of the updated Highway Code. The Highway Code as revised in January 2022 now features a “hierarchy of road users” and states at Rule H1 “but those in charge of vehicles that can cause the greatest harm in the event of a collision bear the greatest responsibility to take care and reduce the danger they pose to others…none of this detracts from the responsibility of ALL road users, including pedestrians, cyclists and horse riders, to have regard for their own and other road users’ safety.” There were some controversial changes made to the substance of the Highway Code which gave effect to the “hierarchy”. With these amendments in mind, in a collision involving a car and an e-scooter, the driver of the car would have the greater share of responsibility for taking care and reducing any danger they may pose.
It is worth commenting that, whilst the e-scooter trials in the UK were fully underway at the time of these revisions, e-scooters have not been explicitly referred to within the code. It also appears that e-scooters are likely to become a permanent feature on UK roads. It seems apparent from rules H1-H3, that e-scooter users would be considered ‘vulnerable road users’ akin to cyclists.
LIABILITY
It is common ground that all road users owe a duty of care to other road users, an e-scooter user is no exception to this rule. Therefore, e-scooter users would do well to abide by the rules and guidance in the Highway Code.
The first question is what the standard is expected of an e-scooter user. In the e-scooter trials, users can access an e-scooter with only a provisional license. Therefore, it seems likely that many of the e-scooters being ridden around cities will be being operated by those who have had no experience of driving on the road. Ultimately, this does not affect the standard to which the user will be held, there is a duty to take care for him/herself as well as other road users, as would be the case for learner drivers, or cyclists.
As an aside, it is worth mentioning a tragic case in December 2022 in which a 12-year-old boy was killed whilst riding an e-scooter. The current position is that e-scooter users should be aged 18 and over, but the reality of the situation seems to be that children have gained access to e-scooters. It is not clear in this scenario if there could be any fault on the part of the e-scooter operator and whether the age or identity of the user will impact upon any insurance policy in place. In any event, the Department for Transport has implemented further regulations which will take affect from 5 December 2023 and will require all users to provide their name, driving license details and to submit a photograph of their license, together with an issued reminder for operators to have systems for storing and sharing this information. The DfT have further emphasised that operators must ensure that the rules are clearly stated, to include any age limits.
Those dealing with claims involving a e-scooters will also want to have regard to the impact of: road conditions, use of the e-scooter, whether the user was under the influence of drugs or alcohol, or if the accident was caused by a “deliberate” or “reckless” act. These matters may not only go to the obvious question of liability but also have some bearing on what is covered by the user’s policy of insurance.
What of a specific example, such as an e-scooter user using the pavement as opposed to the road? To many motorists and pedestrians annoyance, it is not uncommon to see e-scooters traversing both pavements and the roads. However, the E-scooter trials: guidance for users makes clear that “you may use a trial e-scooter on the road (except motorways) and in cycle lanes. You must not [emphasis added] use an e-scooter on the pavement.” It is clear that this is prohibited, and it follows that an e-scooter user who is involved in an accident will face arguments that s/he was fully, or at least partly to blame.
It goes without saying that an e-scooter must have regard for his/her own safety and that of other road users. In reality, the question of whether an e-scooter user has been negligent is unlikely to be controversial when referring back to well-established law and principles, the mode of travel is unlikely to be significant in most cases. That said, one such relevant issue is where an e-scooter user fits in with the hierarchy of road users and their status as a vulnerable road user.
EX-TURPI CAUSA
The position at the time of this article is that private e-scooters are not permitted on public roads. The rationale behind this is sound, e-scooters that are provided in the trials are speed limited, there is a requirement for the provision of insurance and there is a level of oversight from the hiring company.
Many of the accidents reported include those involving private e-scooters. One such example is the case of Giovana Drago (Drago v LB Barnet) who brought a claim for personal injury after she broke her leg due to her e-scooter hitting a pothole in the road. The claim was brought in the Central London County Court but was dismissed due to insufficient evidence of the alleged defect, one of the issues raised was that Ms Drago was riding an e-scooter illegally. The judge ultimately did not address the question of illegality, but interestingly it was pursued by the defendant.
At the time of writing this article there is no reported case law which addresses whether the defence of ex-turpi causa will succeed in claims involving illegally ridden e-scooters i.e. private e-scooters. When considering some of the leading cases, defendants may struggle to establish the defence where the illegal status of an e-scooter is merely incidental to the claim rather than fundamental (see Clark v Farley and Others [2018] EWHC 1007 (QB) and Wallett v Vickers [2018] EWHC 3088 (QB). A defence of ex turpi will need to be weighed against public policy and whether the denial of the claim would be a proportionate response to any illegality. It could be argued the more proportionate response would sound in a reduction for contributory negligence.
It is expected there will be further test cases dealing specifically with e-scooters being ridden illegally on public roads that may assist in clarifying the position.
CONTRIBUTORY NEGLIGENCE
In the case of e-scooter users, as with any party involved in a road traffic accident, there will be cases which require consideration of the risk of contributory negligence.
Some of those circumstances may include:
As for the issue of helmets, this is recommended but not required by law. It is noteworthy that operators, such as Voi, encourage the use of a helmet. The position in law for e-scooter users is unlikely to differ to the position for cyclists in this regard. It is common ground that road traffic accidents are a major cause of head injury and the consequences of failing to wear a helmet can be life-changing and severe. There is an overall duty to take reasonable care for your own safety. Thus, it has been held in a number of cases involving cyclists that if there was a failure to wear a helmet and that this caused or contributed to any head injury that could result in a reduction for contributory negligence. The issue of whether a helmet would have avoided any injury, or reduced the severity of any injury, is often a complex evidential point.
The E-scooter trials: guidance for users also states, “wear light-coloured or fluorescent clothing so that other road users can see you in daylight, poor light and in the dark”. The courts have found cyclists to be partly to blame for collisions in the dark where they were not visible. It would not be a stretch to assume a similar approach may be taken for e-scooter users.
SUMMARY
In short, there are some unique elements to consider when dealing with accidents involving e-scooters. The lack of reported authority on these various points give representatives significant scope for argument. In particular, it will be interesting to see how the courts will deal with cases involving private e-scooters.
Call: 2017
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